Affirming Affirmative Action

William G. Bowen and Derek Bok
William G. Bowen and Derek Bok; drawing by David Levine

1.

For over thirty years America’s best universities and colleges have used race-sensitive admissions policies to increase the number of their black, Hispanic, Chicano, Native American, and other minority students.1 Conservative writers and politicians have attacked this policy of “affirmative action” from its inception, but the policy is now in the greatest danger it has yet faced—on two fronts, political and legal. In 1995, by a 14 to 10 vote, the regents of the University of California declared that race could no longer be taken into account in admissions decisions at any of the branches of that university. In 1996 California voters approved Proposition 209, which ratifies and broadens that prohibition by providing that no state institution may “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education, or public contracting.”2

The effect of the regents’ decision was immediate and, in the views of many of the university’s faculty, disastrous: the Boalt Hall law school at Berkeley—the state’s premier public law school—had enrolled an average of 24 black students each year for the last 28 years. In 1997 it enrolled only one, and he had been admitted the previous year but had deferred entering.3 The political campaign against affirmative action will continue, encouraged by the success of the California initiative, in other states. A similar prohibition will be presented to Washington voters next November, and others are certain to follow.

The second danger may be even more menacing. In 1978, in the famous Bakke case, the Supreme Court in effect ruled that race-sensitive admissions plans do not violate the Fourteenth Amendment of the United States Constitution, which declares that “no state may deny any person equal protection of the laws,” so long as such plans do not stipulate fixed quotas for any race or group, but take race into account only as one factor among others.4 In 1996, however, in the Hopwood case, the Fifth Circuit Court of Appeals declared the admissions program of the University of Texas Law School at Austin unconstitutional, and two of the three judges who made up the majority in that case declared that the Bakke rule had been overruled, even though not expressly, by more recent Supreme Court decisions.5

The immediate consequences of the Fifth Circuit decision were, once again, dramatic: though the Texas Law School had enrolled 31 black students in 1996, it could enroll only 4 in the following year. The Supreme Court declined to review the Fifth Circuit’s decision, which therefore stands as law in Texas and the other states of that circuit. Last October, the Washington, D.C.-based Center for Individual Rights, which had spawned the attack on the University of Texas in the Hopwood case, filed a similar suit in…



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